SZJAN v Minister for Immigration

[2007] FMCA 72

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJAN v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 72

MIGRATION – Application to review decision of Refugee Review Tribunal.

Migration Act (1958) (Cth)
Federal Magistrates Court Rules, r.13.03A

Applicant: SZJAN

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG1900 of 2006

Judgment of: Barnes FM

Hearing date: 18 January 2007

Delivered at: Sydney

Delivered on: 18 January 2007

REPRESENTATION

Applicant: No appearance

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. There being no appearance by the applicant the application is dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules.

2. The applicant pay the costs of the first respondent fixed in the sum of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1900 of 2006

SZJAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) confirming a decision of the delegate of the first respondent not to grant the applicant a protection visa.  The applicant sought review by application filed in this Court on 7 July 2006.  The applicant attended a directions hearing held on 1 August 2006 (with the assistance of a Korean interpreter) and signed consent orders including, relevantly, orders that he file and serve any amended application by a specified date in September 2006.  The matter was listed for final hearing before me at 2.15pm today at the Law Courts Building, Queens Square, Sydney. 

2. There were also orders made for both the applicant and the first respondent to file and serve written legal submissions.  The applicant did in fact file an amended application on 28 September 2006 although no written submissions have been received.  He was not present today when the matter was first called at the time at which it was listed for hearing nor is he present now, some 20 minutes later.  In these circumstances the solicitor for the first respondent seeks that the application be dismissed. 

3. I am advised that the solicitors for the first respondent wrote to the applicant by letter sent by express post on 10 January 2007 enclosing a copy of the first respondent’s written submissions and also reminding the applicant of the hearing date and time.  I note that there may be an issue as to whether this letter was sent to the correct address for the applicant in that the application and amended application contain conflicting details.  The application contains an address for receiving mail that is described as 2/111 in a particular street and suburb and a home address of 2/11 in the same street and suburb.  The amended application refers to an address at 2/11 for both of mail and home addresses.  The written submissions were sent to the 2/111 address, consistent with the address appearing on all the documentation used by the applicant in connection with his protection visa application and the review by the Tribunal.

4. In any event, whatever the situation in relation to the written submissions, what is important for present purposes is that the applicant attended the directions hearing, at which time the matter was listed today before me at 2:15pm at Queen’s Square and that he has not appeared today. In these circumstances, rather than dealing with the merits of the application, I consider that it is appropriate to dismiss the application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules. 

5. I note the applicant may be seen to have indicated some intention to continue involvement in the proceedings (at least by filing an amended application).  If there is a legitimate reason for the applicant’s failure to attend today then it will of course be open to him pursuant to Rule 16.05, to seek that the orders made in his absence be set aside in appropriate circumstances.

6. In addition, the first respondent seeks costs in the sum of $3,800.  In the light of the circumstances of this case compared to other similar matters, I consider that amount is appropriate. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  31 January 2007